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Tesseract: Don’t Over-React! The High Court of Australia, Proportionate Liability, Arbitration, and Private International Law
By Dr Benjamin Hayward
Associate Professor, Department of Business Law and Taxation, Monash Business School
X: @LawGuyPI, @MonashITICL
On 7 August 2024, the High Court of Australia handed down its long-awaited decision in Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24. The dispute arose out of a domestic commercial arbitration seated in South Australia, where the Commercial Arbitration Act 2011 (SA) is the relevant lex arbitri. That Act is a domestically focused adaptation of the UNCITRAL Model Law on International Commercial Arbitration (with its 2006 amendments).
The respondent to the arbitration sought to rely upon proportionate liability legislation found in the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and in the Competition and Consumer Act 2010 (Cth). The High Court was asked to determine whether those proportionate liability regimes could be applied in the arbitration. A very practical difficulty arose here, reflected in Steward J noting (in dissent) that the High Court was ‘faced with an invidious choice’: see [228]. Were the proportionate liability laws not to apply in the arbitration, the respondent might find themselves liable for 100% of the applicant’s loss, when they would not be liable to that same extent in court proceedings applying the same body of South Australian law. But were the proportionate liability laws to apply, the applicant might find themselves able to recover only a portion of their loss in the arbitration, and might then have to then pursue court proceedings against another third party wrongdoer to recover the rest: given that joinder is not possible in arbitration without consent. Read more
First Thai Monetary Judgment Enforced in China, Highlighting Presumptive Reciprocity in China-ASEAN Region
This post is kindly provided by Dr. Meng Yu, lecturer at China University of Political Science and Law, and co-founder of China Justice Observer.
Key Takeaways:
- In June 2024, the China-ASEAN Free Trade Area Nanning International Commercial Tribunal under the Nanning Railway Transportation Intermediate Court in Guangxi ruled to recognize and enforce a Thai monetary judgment (Guangxi Nanning China Travel Service, Ltd. v. Orient Thai Airlines Co., Ltd. (2023) Gui 71 Xie Wai Ren No. 1).
- Apart from being the first case of enforcing Thai monetary judgments in China, it is also the first publicly reported case confirming a reciprocal relationship based on “presumptive reciprocity”.
- The Chinese court’s confirmation that “presumptive reciprocity”, as outlined in the Nanning Statement, is a form of mutual consensus between China and ASEAN countries helps to promote the circulation of judgments within the China-ASEAN region.
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Special Issue: Proceedings of the Bremen Conference on Informed Consent to Dispute Resolution Agreements
The German Law Journal has published a Special Issue featuring the proceedings of the international conference on Informed Consent to Dispute Resolution Agreements, held in Bremen on 20–21 June 2024 (see our earlier announcement here).
Edited by Gralf-Peter Calliess and Nicholas Mouttotos of the University of Bremen, the special issue brings together contributions from leading scholars in private international law, international civil procedure, and international arbitration. Contributors include: Symeon C. Symeonides, Nancy S. Kim, Gralf-Peter Calliess, Frederick Rieländer, Peter McColgan, Laura E. Little, Kermit Roosevelt III, Sören Segger-Piening, John F. Coyle, Hannah L. Buxbaum, Marta Pertegás Sender, Stephen Ware, Stefan F. Thönissen and Nicholas Mouttotos.
The collection addresses a central tension in modern dispute resolution: how to reconcile party autonomy in forum and choice-of-law agreements with the requirement of consent, and how informed should consent be, particularly where such agreements are embedded in standard-form contracts affecting weaker parties such as consumers and employees.
The issue encompasses perspectives from both the United States and the European Union, examining questions of constitutional fairness, access to justice, and the legitimacy of contractual self-determination. Contributions trace the historical development of party autonomy, critique the adequacy of existing consent models, examine their outward abandonment while also exploring comparative regulatory approaches to protecting vulnerable contracting parties.
The special issue is available in the German Law Journal, Volume 26, Special Issue 5, and the editorial can be found here. The German Law Journal is a pioneering (Gold) open-access, peer-reviewed forum for scholarship and commentary on comparative, European, and international law, offering free and unrestricted online access to its publications since 1999.
ZEuP – Zeitschrift für Europäisches Privatrecht 4/2025
A new issue of ZEuP – Zeitschrift für Europäisches Privatrecht is now available and includes contributions on EU private law, comparative law and legal history, legal unification, private international law, and individual European private law regimes. The full table of content can be accessed here: https://rsw.beck.de/zeitschriften/zeup. 
Decoding the Language of Law in the post-Migration Crisis Period: the Informalisation of Migration
The Jean Monnet Chair in Legal Aspects of Migration Management in the EU and in Türkiye and Bilkent University Faculty of Law cordially invite you for the next Migration Talk by Professor Paul James Cardwell (King’s College London) on “Decoding the Language of Law in the post-Migration Crisis Period: the Informalisation of Migration”.
The talk shall be held online. For the Zoom link please contact migration@bilkent.edu.tr.
